Reao Keller v. Brice, Vander Linden & Wernick, Deutshe Bank National Trust, Justice of the Peace Precinct 6 of Denton County

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00457-CV

REAO KELLER APPELLANT

V.

BRICE, VANDER LINDEN & APPELLEES WERNICK, DEUTSHE BANK NATIONAL TRUST, JUSTICE OF THE PEACE PRECINCT 6 OF DENTON COUNTY

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION1 ----------

The trial court dismissed appellant Reao Keller’s case for want of

prosecution on November 12, 2010. Thus, his notice of appeal was due on

December 13, 2010, but he did not file it until the next day. See Tex. R. App. P.

4.1(a), 26.1. On December 17, 2010, we notified appellant that we could dismiss

1 See Tex. R. App. P. 47.4. the appeal for want of jurisdiction if we did not receive a response showing a

reasonable explanation for the late filing of the notice of appeal. See Tex. R.

App. P. 10.5(b)(1)(C), 26.3(b), 42.3(a); Jones v. City of Houston, 976 S.W.2d

676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Appellant has not filed a response.

A motion for extension of time is necessarily implied when an appellant

acting in good faith files a notice of appeal beyond the time allowed by rule 26.1

but within the fifteen-day period in which the appellant would be entitled to move

to extend the filing deadline under rule 26.3. See Verburgt, 959 S.W.2d at 617;

see also Tex. R. App. P. 26.1, 26.3. Even when a motion for extension is

implied, however, it is still necessary for the appellant to reasonably explain the

need for an extension. See Verburgt, 959 S.W.2d at 617. Because appellant’s

notice of appeal was untimely and he has not provided a reasonable explanation

for needing an extension, even after being given the opportunity to do so, we

dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a); In re

K.M.Z., 178 S.W.3d 432, 434 (Tex. App.—Fort Worth 2005, no pet.).

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: February 17, 2011